RECORD OF PROCEEDINGS


         IN THE CASE OF: .
        

         BOARD DATE: 09 December 2003
         DOCKET NUMBER: AR2003089522


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Mark D. Manning		Chairperson
Ms. Eloise C. Prendergast		Member
Mr. Raymond J. Wagner		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).


1. The applicant requests, in two separate applications, the reversal of the bar to reenlistment under the Qualitative Management Program (QMP), removal of a Noncommissioned Officer Evaluation Report (NCOER) covering the period from July 2002 through June 2003, and reinstatement to active duty in the Active Guard/Reserve (AGR) Program.

2. The applicant states, in effect, that the NCOER that served as the basis for her selection under the QMP was not prepared in accordance with the applicable regulation, that she was not properly counseled using the required checklist, did not reflect a proper evaluation of her performance and potential and contained numerous administrative errors. She goes on to state that she had previously been identified for the QMP based on evaluation reports during the period of September 1997 through June 2001, which indicated weaknesses in physical fitness/weight and she successfully appealed that action. However, 5 months later, she was again selected for the QMP, 5 months later that was based on the contested NCOER. However, she was unsuccessful in her appeal because her chain of command recommended disapproval. She continues by stating that she had a profile at the time and the comments regarding her Army Physical Fitness test failures should not have appeared on that report. She also states that she has been experiencing numerous medical issues and four deaths in her family over the past 4 months, without any support from her chain of command. She contends that the contested report is inaccurate and was submitted in malice to pursuade the selection board that she should be selected for QMP.

3. The applicant provides photo copies of her medical records, a copy of her appeal of the NCOER and a copy of an inspector general (IG) complaint she claims to have filed.

CONSIDERATION OF EVIDENCE:

1. The applicant was born on 17 December 1955 and enlisted in the United States Army Reserve (USAR) in Richmond, Virginia, on 18 June 1976. She continued to serve as a personnel management specialist through a series of continuous reenlistments and was promoted to the pay grade of E-5 on 1 March 1985. She was promoted to the pay grade of E-6 on 25 January 1991 and was ordered to active duty in support of Operation Desert Shield/Storm for a period of 3 months and 20 days.

2. She was ordered to active duty in the AGR Program on 17 June 1991, for assignment to Fort Hamilton, New York, as a USAR recruiter. She was promoted to the pay grade of E-7 on 1 November 1994.

3. She reenlisted on 4 February 1997 and was reassigned to Virginia Beach, Virginia, for duty as a USAR Recruiter. She remained there until April 2000, when she was reassigned to Fort Hamilton for duty as a USAR Army Medical Department (AMEDD) recruiter.

4. On 23 September 2002, the applicant received an annual NCOER covering the period from July 2001 through June 2002, evaluating her as an AMEDD Recruiter. The report contains four counseling dates. In Part IVc, under Values/Noncommissioned Officer (NCO) Responsibilities, the rater gave the applicant a "Needs Improvement" rating under Physical Fitness and Military Bearing. The rater indicates that the applicant had a profile as of March 2002 and that she had failed the APFT in October 2001 and January 2002. In part IVf, the rater gave the applicant a "success" rating and indicated that the applicant was occasionally late for work and physical fitness training. In Part V, under Overall Performance and Potential, the rater gave the applicant a "marginal" rating under overall potential for promotion and/or service in positions of greater responsibility.

5. In part V, under overall performance and potential, the senior rater (a lieutenant colonel and battalion commander) gave the applicant a "3" successful rating under overall performance and a "4" fair rating under potential. In his supporting comments he indicated that the applicant had not demonstrated potential for greater responsibility and that she should not be promoted at this time. The applicant refused to sign the NCOER.

6. On 30 September 2002, the applicant completed an IG Action Request (DA Form 5339-R) in which she requested an investigation of her chain of command and command sergeant major (CSM) regarding the blatant misuse of Army Regulation 623-205 (NCOER System). She contended that the NCOER was erroneous because there was no NCO Counseling Checklist (DA Form 2166-8-1) initiated, because the NCOER contained unjust entries regarding her APFT failures, when she had a profile posted, that the NCOER contained derogatory entries regarding her lateness and that there was no basis for the marginal overall potential rating she received. There is no evidence present as to the outcome of her request or if it was ever submitted into proper channels.

7. The available records do not contain any of the documents related to the applicant's selection under the QMP. However, they do contain documents which show that the applicant submitted an appeal of her selection under the QMP. Her SR and battalion commander recommended disapproval of her appeal and indicated that the applicant had passed only one APFT in 5 years and that it was a trend that was not improving. He further indicated that she had a number of medical concerns throughout her tenure and with the exception of her permanent profile which prevented her from running, she had been cleared on every occasion. On the dates she failed her two record APFT's, she was medically qualified to take the APFT and did not complain of any medical problems. On 5 March 2002, she completed her retention physical which states that she is qualified for retention despite her medical complaints. He further stated that her performance had been marginal, she had to be counseled on numerous occasions for failure to be at her assigned place of duty at the assigned time and her attitude and commitment are reflected by her failure to attend special physical fitness training to improve her APFT.

8. The applicant's brigade commander also recommended disapproval of her appeal and indicated that since the approval of her appeal in Fiscal Year 01, she had failed two record physical fitness tests in October 2001 and January 2002.

9. The Recruiting Command at Fort Knox, Kentucky also recommended disapproval of her appeal and indicated that two successive failures of the APFT normally warrant the implementation of separation procedures.

10. On 1 October 2002, a Department of the Army Standby Advisory Board convened to consider AGR QMP appeals. The Board was recessed on 1 November 2002 and was approved on 17 December 2002. After careful review of the applicant's records, her appeal was denied.

11. On 30 January 2003, the Total Army Reserve Personnel Command dispatched a memorandum to the applicant's command informing them that the applicant's appeal had been denied and that because she had 26 years of qualifying service, she could request to be released from active duty and transferred to the Retired Reserve. Failure to do so would result in the applicant being involuntarily discharged 90 days after receiving pre-separation counseling.

12. A review of the available records fails to show that the applicant ever appealed the contested NCOER to the Enlisted Special Review Board (ESRB) or that she requested a commander's inquiry be conducted.

13. The available records show that she was issued a 20-year letter on 30 October 1996 and that she is currently in the Retired Reserve.

14. A review of the applicant's evaluation reports show that her NCOER ending in March 1991 indicates that she had a profile and that she did not meet the weight standards prescribed by Army Regulation 600-9. Her NCOER ending in June 1993 indicates that she was issued a profile in May 1993. Her academic evaluation report from attendance at the Basic Noncommissioned Officer Course (BNCOC) indicates that she passed her APFT on the second attempt. During the period of December 1996 through March 2003, she had four evaluation reports indicating that she was on profile. The contested report was the fifth such report.

15. Army Regulation 635-200, chapter 19, sets forth policy and prescribes procedures for denying continued service under the QMP. This program is based on the premise that reenlistment and continued service is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards. It is designed to (1) enhance quality of the career enlisted force, (2) selectively retain the best qualified enlisted soldiers to 30 years of active duty, (3) deny reenlistment to non-progressive and non-productive soldiers, and (4) encourage soldiers to maintain their eligibility for further service. The QMP consists of two major subprograms, the qualitative retention subprogram and the qualitative screening subprogram. Under the qualitative screening subprogram, records for grades E-5 through E-9 are regularly screened by the Department of the Army promotion selection boards. The appropriate selection boards evaluate past performances and estimate the potential of each soldier to determine if continued service is warranted. Soldiers whose continued service is not warranted receive a QMP bar to reenlistment.

16. Army Regulation 623-205, sets forth the policies and procedures for the Enlisted Evaluation Reporting System. Paragraph 4-2 states, in pertinent part, that an evaluation report accepted for inclusion in the official record of an NCO is presumed to represent the considered opinion and objective judgment of rating officials at the time of preparation. Paragraph 4-7 of that regulation states, in pertinent part, that when submitting an appeal, the burden of proof rests with the applicant and that he or she must produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

17. That regulation also provides that in Part IVc, under the APFT entry, the rater will enter comments to explain an APFT entry of "Fail" or Profile". Numerical APFT scores will not be entered unless to justify an "Excellence" or "Needs Improvement" rating.

DISCUSSION AND CONCLUSIONS :

1. Although the available records do not contain and the applicant has not provided copies of either of the QMP actions, the applicant has failed to show through the evidence submitted or the evidence of record that the QMP action was in error or unjust.

2. Notwithstanding the fact that the applicant has not exhausted her administrative remedies by appealing the contested NCOER to the ESRB, she has failed to show that the NCOER in question was in error, was unjust or that it was not prepared by the proper rating officials. However, the actions of this Board will not preclude her from exhausting her appeals with the ESRB.

3. The applicant's contention that she was not properly counseled is not supported by either the evidence of record or the evidence submitted with her application.

4. The evidence of record does suggest that the applicant had a history of having trouble passing the APFT and that she was routinely on profile. Despite the fact that she has been medically cleared of her profiles, it appears that she continued to experience difficulty in passing the APFT.

5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

mdm _____ ecp _____ rjw _____ DENY APPLICATION


The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





                  ____Mark D. Manning____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003089522
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031209
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1. 111.0000	193/NCOER
2. 106.0600	7/QMP
3. 110.0300	192/REINSTATE
4.
5.
6.